Last updated on Apr 03, 2013
Unlocking the Law Symposium
Welcome to “Unlocking the Law: Deregulating the Legal Profession”
Last updated on Apr 03, 2013
Welcome to “Unlocking the Law: Deregulating the Legal Profession”
Licensing and regulation of lawyers, long questioned by scholars, is emerging as an important public issue. Legal costs are rising for individuals and firms with increases in litigation and regulation. These costs tax business growth and entrepreneurship and impede ordinary Americans’ access to the civil justice system. Meanwhile, the development of new business structures and technologies and significant regulatory moves toward opening up competition for legal services in the UK and elsewhere are forcing policymakers to address lawyer licensing and regulation. The U.S. is certainly not immune from the economic and other institutional forces nudging toward a reconsideration of existing licensing and regulation regimes. It is an excellent time to reexamine the costs and benefits of existing and alternative regimes in light of these changes.
Day 1 of the Symposium (September 19, 2011) featured posts from:
Day 2 of the Symposium (September 20, 2011) featured posts from:
Please remember to check out the comments to the individual posts as well, which include some excellent additional commentary and lively discussion among participants.
Robert Crandall and Clifford Winston’s op-ed in today’s Wall Street Journal makes the case for deregulating the practice of law: Entry deregulation would also expand individuals’ options for preparing for a career in legal services, including attending vocational and online schools and taking apprenticeships without acquiring formal legal education. Established law schools would face pressure ... Announcing the TOTM Symposium on Unlocking the Law: Deregulating the Legal Profession
The next TOTM symposium “Unlocking the Law: Deregulating the Legal Profession” is right around the corner on Monday and Tuesday of next week. We’ve got a wonderful group of participants confirmed, including: Hans Bader Benjamin Barton James Cooper Robert Crandall Nuno Garoupa Gillian Hadfield Bill Henderson Dan Katz Bruce Kobayashi George Leef Jon Macey Tom ... TOTM Symposium on “Unlocking the Law: Deregulating the Legal Profession” on September 19th and 20th
Welcome to “Unlocking the Law: Deregulating the Legal Profession.” Licensing and regulation of lawyers, long questioned by scholars, is emerging as an important public issue. Legal costs are rising for individuals and firms with increases in litigation and regulation. These costs tax business growth and entrepreneurship and impede ordinary Americans’ access to the civil justice ... Welcome to the TOTM Symposium on Unlocking the Law: Deregulating the Legal Profession
Much of the writing on deregulating the legal profession asks skeptically whether it could or should happen. It was logical to wonder what could change when the profession was locked up tight by the lawyers themselves. What opposing political interest group was comparably well-organized or well-informed? Consumers could sue to break up the regulatory monopoly, ... Larry Ribstein on Deregulating Lawyers Whether They Like it or Not
Several years ago, when Cliff Winston and I began looking at the incomes earned by lawyers, we were struck by several facts. First, after accounting for age, years of education, experience and various other demographic influences, we found that the income premium earned by lawyers had increased by about 50 percent between 1975 and 2004, ... Robert Crandall on We Need More Lawyers!
The TOTM Unlocking the Law Symposium is designed to raise a host of questions surrounding lawyer regulation, including ending lawyer licensure requirements and the ban on non-lawyer investment. My thesis, for better or worse, is that we may be asking the wrong questions. Despite the stringent regulations placed on lawyers, ingenious entrepreneurs—most of them non-lawyers—are ... William Henderson on Are We Asking the Wrong Questions About Lawyer Regulation?
Although it has the zing of a slogan that I myself have often used, the call to ‘deregulate’ the legal profession is misleading. Yes, most of us who argue that the legal profession is excessively closed to competition—in a way that hampers both access and innovation, as I have argued in recent papers—think that the ... Gillian Hadfield on Right-Regulating Legal Markets
If this symposium is asking the single question whether U.S. jurisdictions should deregulate the practice of law, my answer has to be no. My problem is that the question itself conflates at least three questions, and the answers to each should be different. The first question is whether people other than licensed lawyers should be ... Thomas Morgan on Realistic Questions About Modern Lawyer Regulation
I have spent the last few days reading the recent study by Clifford Winston, Robert W. Crandall, and Vikram Maheshri, entitled “First Thing We Do: Let’s Deregulate All the Lawyers” (Brookings Institution, 2011, $19.95). In it, the authors marshal a variety of empirical methods to argue that the current practice of state bar admission and ... Eric Talley on Deregulating Lawyers: Comments From a Knee-jerk Skeptic
Innovation and entry by entrepreneurs is a powerful force for change. Joseph Schumpeter saw these forces as the primary engine for long-term growth, even as the process of creative destruction destroyed existing wealth, including monopoly rents associated with established regulatory regimes. The forces of creative destruction seemingly have their sights squarely on the legal profession, ... Bruce Kobayashi on Creative Destruction and the Market for Legal Services
Last month the New York Times ran an editorial with the headline “Addressing the Justice Gap,” observing that “the poor need representation and thousands of law graduates need work.” The piece proposed several solutions, but notably absent was the reform most likely to deliver legal services to those in need and to create jobs for ... Renee Newman Knake on Corporations, the Delivery of Legal Services, and the First Amendment Part I
Fifteen years ago I published an article urging that non-lawyers be allowed to finance the cost of legal representation in return for a percentage of a judgment or settlement if the plaintiff is successful. Common law prohibitions on champerty were widely believed at the time to prohibit third parties from buying an interest in litigation. ... Richard Painter on Litigation Financing and Insurance
As a libertarian, I mostly concur in the critique of occupational licensure made famous by (among others) Milton Friedman. For the most part, licensure is a consumer-unfriendly affair that protects incumbent practitioners from competition, locks out promising new methods of service provision, and interferes with voluntary dealings between professional and client. It is dubious enough ... Walter Olson on Careful What You Unleash
Let me start with a couple of stories. Story 1. I’m an economist, but I got a chance to be like a real lawyer in filing an amicus brief recently (Barnes v. Indiana– here’s our brief). We had only two weeks to organize, write, and file because of an oddity of the case (a petitition ... Eric Rasmusen on Everyday Versus Fancy Law
My previous post in this symposium argued that deregulation is upon us. Here I’ll discuss what that could entail. The legal information expert: I summoned up the specter of computers practicing law. There is in fact no doubt that computers can practice law as that term is defined by some courts and regulators: giving personalized ... Larry Ribstein on After the Fall (Of Regulation)
Lawyer licensing should not be completely abolished, but it should be made radically easier and cheaper by abolishing the requirement that lawyers attend law school to sit for the bar exam, and by only requiring passage of the bar exam for those who handle court cases. Legal redress should also be made easier by allowing ... Hans Bader on Abolish Law School Requirement, Keep the Bar Exam?
Let’s start at the very beginning. When analyzing the merits of any regulation — i.e., any rule that disrupts private ordering by threat of force — one should first ask what problem the regulation aims to avert. When it comes to the rules banning sales (and thereby preventing purchases) of legal services by unlicensed individuals, ... Thom Lambert on Alternatives to Lawyer Licensing
When Americans think about governmental regulations meant to protect them against harm, they are prone to making two mistakes in judgment: first, they tend to overestimate the benefits that are supposed to result from regulation (including mandatory licensing) and second, they tend to underestimate (and usually to completely overlook) the costs and problems created by ... George Leef on Licensure in the Legal Profession
There is a Missouri statute that makes it a misdemeanor, punishable by $100 fine, for anyone who is not licensed by the Missouri bar to “engage in the practice of law or do law business.” If convicted, violators can be sued by anyone that paid them for their services or by the state of Missouri; ... Gillian Hadfield on Evidence-based Regulation for Law
It is questionable whether states should have unauthorized practiced of law statutes and bar admission standards based on credentials rather than examinations. A first step, however, is to attack statutes that forbid a non-lawyer from giving free legal advice, whether to friend, family, or just someone who can’t afford all the legal help he needs. ... Eric Rasmusen on Unauthorized Practice of Law — The Case of Free Advice
What will legal education be like in the significantly deregulated world I’ve predicted in prior posts? I gave some thought to this question in my recent paper, Practicing Theory. There I pointed out that law schools, and particularly law faculty, have benefited from the same regulation that has benefited lawyers. Although lawyers now complain that ... Larry Ribstein on The Future of Legal Education
I’ve expressed doubts previously as to whether the simple model of licensure as incumbent protection adequately explains why our legal system (like all others I know of) limits who can be a lawyer, and in particular who can litigate in others’ interest. But if there’s one sector of the legal system that’s genuinely ripe for ... Walter Olson on Reform Law Schools, Don’t Sue Them
A recent article argues “65 percent of today’s elementary aged kids may end up doing work that hasn’t even yet been invented.” This is a thought provoking number and it points to the disruptive nature of innovation and its impact on a variety of labor markets. There is a portion of the downturn in legal ... Dan Katz on Legal Informatics, Corporate Law Firm Ownership and 21st Century Legal Education
I may have missed it, but a topic that I don’t think has come up in the discussion thus far is unauthorized practice of law prohibitions. If we want to allow the free market’s discovery process to work – finding new modes of delivering services that serve consumers better than the old ones – we ... George Leef on If We Want Creative Destruction, Destroy Unauthorized Practice Prohibitions
The European Commission, in particular the Directorate-General for Competition, has shown interest in promoting competition in the market for legal services since the early 2000s. Some countries such as the United Kingdom have taken this matter seriously. After a long review process, the British government has recently implemented a new regulatory set-up for legal services ... Nuno Garoupa on Reforming Legal Professions in Europe
First, thanks to TOTM for organizing this symposium on a most timely and important topic. As computers and technology have revolutionized every aspect of human endeavor it is a particularly critical time to ask ourselves why 21st century law schools closely resemble the law schools of the late-19th century and why in court litigation would ... Benjamin Barton on The Lawyer-Judge Bias
In Part I of this post, I identified a jurisprudential thread of cases that suggest corporations have a First Amendment right to own and invest in law practices for the delivery legal services. These decisions include NAACP v. Button, the union trilogy, and Bates v. State Bar of Arizona. Two recent cases shed light on ... Renee Newman Knake on Corporations, the Delivery of Legal Services, and the First Amendment Part II
The traditional narrative is that Asian jurisdictions have fewer lawyers than in the West because they are much less litigious societies; they don’t need lawyers! Recent evidence has suggested the causation is probably reversed; there are not enough lawyers to provide services to all potential litigants. Legal markets in East Asia were largely kept closed ... Nuno Garoupa on Reforming Legal Professions In East Asia
Attorneys earn excess rents by maintaining barriers to entering the legal profession. Legislation and regulation expanding the scope of work that only an attorney legally can perform is an obvious way in which attorneys attempt to expand or protect the market for their services. The FTC has a long history of trying to convince state ... James Cooper on Antitrust Treatment of Expansive Interpretations of Ethical Rules
My first post discussed one primary impediment to deregulating all the lawyers – which is the current system of legal regulation of lawyers. Even if one agrees that deregulating all the lawyers may be the ultimate goal, this still leaves the question of how best to achieve this result. Deregulating all the lawyers may not ... Bruce Kobayashi on Copyrighting Law and Deregulation
As we approach the end of this Symposium, I am struck by how much consensus exists on this subject. Of course, we are not conducting this exercise under the auspices of the ABA. Nevertheless, there is sufficient intellectual backing for a major push to begin the deregulation of legal services. Despite warnings that this is ... Robert Crandall on It Is Time to Move Ahead with Deregulation
It’s been a great symposium. Many thanks to all of our outstanding contributors! This Symposium demonstrated blogging’s potential for productive intellectual discussion of an important current topic. We expect to have more such virtual conferences. We’ll have a wrap-up tomorrow of all of the posts here. I will offer some reactions after I’ve had time ... Concluding Unlocking the Law
Clifford Winston argues for this in the NYT. For much more, see our symposium with Winston and many others.
I’m very pleased to announce the George Mason Law & Economics Center is hosting a program focusing on our friend and colleague Larry Ribstein’s scholarship on the market for law. Henry Butler and Bruce Kobayashi have put together a really wonderful program of folks coming together not to celebrate Larry’s work — but to ... GMU Law & Economics Center Presents “Unlocking the Law: Building on the Work of Professor Larry Ribstein”